Texas lawmakers are currently considering amending the Texas capital murder law as a result of the US Supreme court’s decision that life without parole is an unconstitutional punishment when applied to offenders seventeen years old or younger. After failing to pass a new law the governor included it in the current special legislative session. The law under consideration would create a mandatory punishment of life with parole eligibility after 40 years. Under current law if a seventeen year old is charged with capital murder and is convicted the only possible sentences are either the death penalty or life without parole. This, according to some, has created a problem in that seventeen years old cannot be charged with capital murder. This problem only applies to seventeen year olds because under current law 14,15, and 16 year olds who are certified as adults and convicted of capital murder are given a mandatory sentence of life with the possibility of parole after 40 years.

Many of the articles and opinions on this subject have treated the situation as if there are a large number of seventeen year old murderers who are on the verge of being let loose on their community. This is misleading because what is really at issue is the mandatory aspect of the sentencing and how much discretion a judge or jury should have when sentencing a defendant who is seventeen or younger. Thus, the real issue here is whether when sentencing a juvenile should more be taken into account when determining what would be a just punishment. In my experience a juvenile’s mind and understanding of their actions and the consequences of their actions are extremely different than adults. They are prone to different sets of pressures and their actions are often affected to a greater extent by home situations and other issues. While it is true that this does not mean that the consequences of their actions are less horrific it does mean that their moral culpability would not necessarily be the same as an adult who committed the same act. It therefore would seem to follow that the manner of their sentencing and the amount of discretion given to the judge or jury should be different. Many aspects of our criminal justice system reflect this understanding and it is the reason why we have a Juvenile Justice System. It would seem to follow that if moral culpability is understood to be different on an assault case or burglary case it may also be different in the most serious cases and that this should be up to the judge or jury to decide.